US government asks Supreme Court to lift stay on contraception mandate

The US government filed a motion [text, PDF] Friday asking the US Supreme Court [official website] to remove the stay [text, PDF] on the contraception mandate in the Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder] that was put in place by Justice Sonia Sotomayor earlier this week. The government argues that the motion for an emergency injunction filed by Little Sisters For the Poor [advocacy website] was granted improperly because the group has no legal basis, as an exempted "church plan," to file the lawsuit. Sotomayor's injunction applies to the Little Sisters as well as several other religious groups that use the same health plan. In the initial grant of the injunction, she noted she would revisit the issue after receiving the government's response. Solicitor General Donald Verrilli [official profile] noted in his response:

[Applicants] need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan. At that point, the employer-applicants will have satisfied all their obligations under the contraceptive coverage provision. Thus, as this case comes to the Court, it is not about the availability or adequacy of a religious accommodation, but rather about whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks. Applicants have no legal basis to challenge the selfcertification requirement or to complain that it involves them in the process of providing contraceptive coverage. As both of the lower courts recognized, this case involves a church plan that is exempt from regulation under the Employee Retirement Income Security Act of 1974 (ERISA).

Non-profit groups seeking these types of exemptions claim that this certification process is a violation in itself. Sotomayor, who is in charge of emergency motions arising out of the US Court of Appeals for the Tenth Circuit [official website] will issue a ruling on the injunction.

The contraception has been a subject of legal uncertainty since the PPACA was signed into law [JURIST report]. Sotomayor granted [JURIST report] the initial emergency injunction earlier this week. In September, the Obama administration petitioned [JURIST report] the US Supreme Court for a writ of certiorari to review the constitutionality of the mandate. In September the US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] that Autocam Corp., a manufacturer of car and medical supplies, must comply with the PPACA's contraception coverage mandate. In July the US Court of Appeals for the Third Circuit ruled [JURIST report] that family-owned, profit-making businesses cannot challenge the new federal health care law's birth control mandate on religious grounds. The previous month, however, the US Court of Appeals for the Tenth Circuit ruled [JURIST report] that Hobby Lobby may challenge the mandate on religious grounds. In February the Obama administration issued a new rule [JURIST report] that details a broader exemption to the contraception mandate, allowing for religious nonprofits that object to providing health insurance coverage for birth control to opt out of the requirement.

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